VANAGIRI SRI SELLIAMMAN AYYANAR UTHIRASOMASUNDARESWARAR Vs. RAJANGA ASARI

JUDGEMENT

(1.) THREE temples situate in the village of Vangarai in Sirkali Taluk, Tanjore Dt. represented by their trustees instituted a suit which has given rise to this appeal for an injunction restraining the respondents 1 to 4, from interfering with their possession and enjoyment of the suit properties. The suit was later converted into one for recovery of possession. The properties which form the subject matter of the suit consist of three items covering in all an extent of two acres. Out of this one acre was claimed by respondents 1 and 2 as pertaining to carpenter manyam and the remaining extent was claimed by respondents 3 and 4 as a grant to the village barber for rendering certain services. It is not disputed that the respective respondents are residing in he village and serving as carpenters and barbers. The properties originally formed part of the village samudayam and it is now found and that finding has not been challenged before us, that they at an unknown period wee given by the villagers to the carpenter and the barber for their services to the village community. Notwithstanding this, patta for the lands continued to remain the names of the co-shares. The kist due thereon was also paid by them. Recently, during the year 1955 disputes arose between the co-shares and respondents 1 to 4; the former purported to dedicate the property covered by the suit to the village temples, namely, the appellants herein. Patta for the lands was also transferred in the names of the temples. Respondents 1 to 4 who were in possession of the lands apprehending that he corps standing on the lands would be removed by the trustees of the temple filed O. S. 33 of 1956 on the file of the District Munsif court, Sirkali, for an injunction against the latter restraining them from so doing. That suit was contested. On 29-1-1957, the suit was dismissed, with costs as not having been pressed. It is now pertinent to say that the relief claimed in that suit related only to the single crop standing on the lands and no question of title was involved in the case. Presumably by the time the respondents intimated to the court that hey wee not pressing their suit the apprehended mischief had ceased to worry the artisans. That must have induced them to withdraw the suit. Shortly after the disposal of the suit the appellants instituted the suit that has given rise to this appeal for injunction against respondents 1 to 4 pleading their own title and stating that the respondents were let into possession of the lands by the predecessors-in-title of the co-shares, landlords only five years previous thereto under a permissive title and that they had surrendered possession in the year 1957 and that therefore, they had no further right to disturb the appellants' lawful possession. Respondents 1 to 4 contested this claim pleading that they had been in possession of the properties form the time of their ancestors; they also denied the title of the appellants to the property. The trial court upheld the title of the appellants. It however found that the appellants had no possession of the property and it passed a decree for possession in their favour. This decree was set aside by the learned subordinate Judge of Kumbakonam to whose file the appeal had been transferred. The appellate court held that there had been no valid or lawful dedication by the co-shares, landlords of the lands in favour of the appellants and that the lands being manyam given to the contesting respondents as artisan service inams, they could not be evicted from their possession as they had the right to remain on the property so long as they rendered service to the villagers. This view has been accepted on second appeal by Venkataraman J. But the learned Judge gave a certificate under Cl. 15 Letters Patent for a further appeal. Hence this appeal.

(2.) SRI T. S. Kuppuswami Iyer, appearing for the appellants, first contended that as the lands were given to the ancestors of respondents 1 to 4 in lieu of wages for services rendered by them they should be regarded as manyam or inam grants for services and hat it should be open tot he co-shares, the grantors, to recover possession of the lands, whenever they chose, the grant in essence being one for service which could be dispensed with by the villagers. In support of that contention learned counsel relied upon the decision of Venkatasubba Rao J. , in thiruvenkatacharlu v. Sahi Altoo Sahib, 50 Mad LJ 251: (AIR 1926 Mad 511)where the learned Judge pointed out the distinction between two types of grants, namely (1) that was made in lieu of wages for services to be rendered and (2)possessory grant subject to the condition of the performance of service. The contention on behalf of the appellants, as we said is, that having regard to the admissions on the part of the respondents, the grant in the present case should be regarded as one coming under the first category; that therefore it was open to the landlord to terminate the services of the respondents at their pleasure and make over the lands tot he temples.

(3.) AS pointed out by Venkataraman J. , this case was not put forward either in the pleadings or before the courts below. The learned Judge, therefore, held that it was not open to the appellants to start a new case at the stage of the second appeal. But the learned judge did not dispose of the appeal on this narrow ground alone. He held that even if they wee permitted to raise such a case, it has to fail for the reason that he appellants had failed to make out the right to resumption.